Harmeet Dhillon on Distinguishing Between Protected Speech and Actionable Discriminatory Conduct

Jewish Insider:

Harmeet Dhillon, the assistant attorney general for civil rights, urged pro-Israel college students to distinguish between protected speech and actionable discriminatory conduct — “people literally interfering with your ability to get an education” — when facing antisemitism on campus.

“[With] a lot of young people these days, there’s kind of a snowflake culture with ‘I feel unsafe.’ I feel unsafe everyday when I go to work and get a mean email from a colleague. Life is full of challenges,” Dhillon said on Tuesday at the conclusion of the Israel on Campus Coalition’s National Leadership Summit in Washington.

“Someone wearing a keffiyeh or shouting ‘from the river to the sea,’ it’s protected by the First Amendment,” Dhillon said. “Holding a red triangle over a student’s head in a mob setting and saying ‘Jews not welcome’ is much closer to not protected speech.”

“You have to sort out people being mean or rude to you versus people literally interfering with your ability to get an education,” she said.

It so happens I’ve written two articles on exactly that theme, i.e., distinguishing between protected speech and unprotected conduct.

Unfortunately, the Jewish Insider article does not give much more detail about Dhillon’s speech; I don’t know if that’s because the speech did not go into further detail, or because of the limitations of a short article.

That said, while I agree with Dhillon’s general point and understand why she made it to this specific audience, there is a related issue percolating through the courts: can otherwise protected speech be used as contextual evidence to explain why unprotected conduct contributed to an unlawful hostile environment for Jewish students.

The law firm Consovoy, McCarthy recently filed an amicus brief to the Supreme Court on my behalf, asking the Court to grant cert. in Stand With Us Center for Legal Justice v. MIT. In that case, the First Circuit, correctly, held that illicit actions by anti-Israel protestors cannot turn unprotected speech into a civil rights violation. The court then, incorrectly, suggested that the illicit conduct itself became part of the protected speech so long as MIT chose not to enforce its rules (and the law).

But the amicus brief focuses on the narrower issue of whether constitutionally protected speech endorsing violence can be used as contextual evidence explaining why unprotected conduct contributed to a hostile environment. Given that the court mistakenly ruled that unprotected conduct was protected speech, it neglected to meaningfully address this issue, but it’s crucial to hostile environment cases:

An act that appears innocent in isolation may take on a different meaning when viewed in context. Posting a completed game of hangman in a dormitory common area may seem innocuous. But if students had publicly declared the week before that lynching was a good way to keep Black people “in their place,” the same image could reasonably be understood as threatening and racially targeted. The surrounding expression thus bears directly on how a reasonable person would understand the act.

As always, a cert. grant is a longshot, but mine is one of several amicus briefs filed in the MIT case.

If followed by other courts, the opinion would not only make it nearly impossible for Jewish students to win hostile environment cases, could also spell the end of hostile environment litigation more generally.

In addition to the issue raised above, the MIT court held that holding a defendant liable for deliberate indifference to a hostile environment requires evidence that the actors who created the hostile environment acted with discriminatory animus. So, first, the court held that proof of discriminatory animus is required, but also held that contextual evidence that would show that discriminatory animus is barred.

And, second, the notion that discriminatory animus is required for hostile environment claims to begin with seems clearly wrong. On the most basic level, it’s not the students  who created the hostile environment who are being held liable in a hostile environment case, it’s the university that exhibited deliberate indifference to the hostile environment.

Imagine the university implemented an AI communications system, which started sending out violent threats to women students. The university became aware of these threats, and the impact it was having on women students who were unable to concentrate on their studies after receiving vile, threatening messages to their phones and emails. The university chooses to do nothing.

AI, not being a sentiment being, can’t have an “intent.” Does that mean that a subsequent hostile environment case should fail, because there was no discriminatory intent or animus in the underlying behavior? That seems absurd.

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